Understanding the legal process in America is not easy, and I do not envy the attorneys who try to defend doctors in court. I do envy them for their protections. Lawyers, for the most part, as elected members of Congress, create our laws. Others, also for the most part lawyers, are selected to be U.S. Attorneys, and they enforce those laws. Lawyers called judges control our courtrooms. Almost all of them are drawn from the ranks of prosecutors, with very few defense attorneys being selected, and their biases, subconscious or perhaps not, are reflected in the ratio of their decisions that favor the prosecution. Finally, lawyers designated as Supreme interpret the laws written by lawyers and enforced by lawyers.

America does not have the rule of law; we have the rule of lawyers, and this worked fine for about two hundred years. Or I should say it worked fine for some people. The cases of Bell and Dred Scott make clear that, while justice is supposed to be blind, it clearly is not.

In the 1960s this started to change. Judges started actually trying to follow the constitution and saw it as their duty to protect the rights of the individual when those rights were being trampled by those in power: the wealthy, the better connected, and even the state itself.

But in the 1970s it became politically popular to accuse the courts of being too “pro-criminal.” What they meant was that when those in power want you to go away, that is what those in power think should happen. The conviction rate in federal courts at that time was about seventy-five percent, with many cases being dropped before trial. The lawyers in the executive branch did not like this, and they reached out to the lawyers in the legislative branch and said, “Fix this.”

And fix it they did. Laws were passed limiting a defendant’s ability to get access to evidence. Authorities were no longer punished for violating a defendant’s constitutional rights; lawyers did not have to tell the truth to the grand juries or even at trial. The goal of the prosecutor became, not justice, but conviction über alles. The appellate courts were allowed to look at a conviction in a light “most favorable to the prosecution,” turning Franklin’s admonition that ninety-nine guilty should go free before one innocent goes to prison on its head. Now, innocents are sacrificed on the altar of finality of conviction, the stated goal of appellate courts these days, turning them into rubber stamps.

Except for the extremely wealthy, well-connected, and politically powerful. You will find that when an appeal is granted that frees someone from prison, it is almost always from those categories. The rest of us, even when we win, are left in prison. Like Dr. Ruan. How is there any meaning to winning on appeal to the U.S. Supreme Court if the prosecutor is allowed to take you back and give you the same twenty years again?

And what did the Ruan decision accomplish for doctors? It gave us the false hope that we could again focus on the health of our patients instead of constantly practicing not just defensive medicine but adversarial medicine, where every patient could be a compromised confidential informant trying to alleviate some ungodly sentence by getting you to forget to dot an “i” or cross a “t.” Or perhaps they are DEA agents, trained in deception by the masters of political manipulation, the FBI.

Whoever decided to put the Civil Rights Division under the same umbrella as the creators of COINTELPRO should get the Orwell Award.

I am writing this to you from prison because the 8th Circuit Court of Appeals has ruled that, because a government paid expert did not think my physical exam documentation was extensive enough, I should spend seven years in federal prison. No witness testified at trial that I had criminal intent or sold a prescription out the back door.

The government called two of my patients to the stand, and they both said that I was a compassionate doctor, trying to help them with their terrible problems, paraplegia with pain from an implanted steel rod for one, and spinal fractures acquired on active duty for another.

No. The problem was that the government’s taxpayer compensated expert did not think that my physical exam documented enough. He was from Florida, where their state laws regarding the practice of medicine require a review of past records and a physical exam. I practice in Arkansas, where the standard is a comprehensive physical examination OR a thorough review of the medical records.

Now I did both, as is my usual practice of medicine. My clinic had an MD for general medicine and urgent care, a nurse practitioner who was psychiatrically trained, and two counselors. If a patient was on chronic treatment with a controlled medication however, they could not just walk in for refills. They had to first submit their medical records for review before an appointment with me was allowed. My job was to handle complicated patients.

I had been the director of emergency medicine and trauma at two hospitals and the director of medicine and vice chief of staff at one. I had also worked with a board-certified pain specialist for over a decade and had gone through the training to become one of the less than six percent of physicians to be certified to treat addiction. That already takes me out of the average practice of medicine.

But the “usual practice of medicine” should not be construed as the “average practice of medicine.” If I am an average primary care physician I might not accept cancer patients. I might not treat veterans with PTSD. I might not take over the care of patients with HIV and AIDS when the local state supported facility started refusing to treat them. But I did all of those things.

My colleague at the clinic and I agreed that we would no longer start anyone except cancer patients on opioid medications, or even benzodiazepines, leaving that to psychiatrists and other specialists. But we would continue medications started by others if we found good reason for them in the history. And in all of the patients I was prosecuted for treating, we did, including the one who died from seizures in police custody after they withheld his benzodiazepines.

No, they did not check with a doctor or nurse or even a medical student, any one of whom would have told them about the near certain fatality of benzodiazepine withdrawal induced seizures. The police at the jail did not think they had to check with anyone. Like today’s politicians and the DEA, they believed that they knew better than the doctors what this guy needed. He needed to suffer.

They thought we had been drinking but even when the test came back clear of any alcohol, they still refused his medications. Even when he beat on the walls of his cells with his fists, something the government paid toxicologist said was not a sign of agitation, they refused to give him his prescribed medications or call me or anyone else. They could have called me or the specialist he had driven four hours to see, the spine specialist who was going to help him with his injured neck.

This patient had suffered an industrial accident that crushed his lumbar spine, and metal plates and rods had to be surgically placed to stabilize it and prevent paralysis. Though the bones heal around the metal, for almost all patients, this does not stop hurting. Ever. Nor did it for him.

He came to us on three opiates and two benzodiazepines. I reviewed his history, saw the MRIs and comprehensive exams by spine surgeons and a pain specialist, saw the PTSD diagnosis and other complications. But just as I approved him for an appointment, he suffered a new injury. He was a corrections officer, and while running during an emergency, his right hand had been caught and crushed in a sliding steel door, pulling off the last third of one finger.

The ER report was faxed over showing neck and shoulder pain, and hand pain of course. And I accepted him as a patient. The first day I saw him we reviewed those records together, and I did a thorough eleven-system general exam. His hand was bandaged, and I did not unwrap it as I knew the risk of infection from a traumatic amputation was very high. He did indeed get a bone infection that required further amputations.

The government’s expert faulted me for “not even examining the hand,” ignoring this risk. On the next visit I took a picture of the stump, and it was in his chart. The physical exam that day was to make sure that, while all the specialists were focusing on his injuries, nothing else had been missed.

Sure, I used abbreviations that I am sure were confusing to the jury, “well groomed, well nourished, white male in no acute distress,” etc. But the federal government seems to have lost sight of the fact that the patient chart is not created for legal review, or at least it should not be. It was created by me so that I could note, not everything, but what was important about this patient.

I was not going to assume that every medical professional who saw these patients before me did not know what they were doing. But that is exactly what the government’s pain expert told the jury. That the MRIs had been read wrong, that the EMGs had been read wrong, and that I should have known that.

Dr. “R” testified that I had not documented sufficiently to justify continuing his medications, focusing only on my chart, and ignoring all of the scanned-in records. The patient had enough past CTs to glow in the dark and MRIs to stick to a refrigerator. Was I to know that I would be faulted by the prosecution for not getting one more? Ignoring the fact that I did indeed get an MRI of his shoulder, documenting rotator cuff injuries, and of his neck, documenting his traction injuries?

I did a good general exam, to look for anything missed. I was worried about his blood pressure, but he was in pain from his recent injuries. And he was in pain. Chronic pain in his back and acute pain from his new hand, shoulder, and neck injuries. Putting him on something could cause him to pass out if he had a good day and would complete the surgeries I knew he would need.

This exact chart was reviewed by several physicians from the Arkansas Pain Committee. A software error had kept imported “scanned in” items from printing for them to review, and of course, after a terrifying visit from the DEA, they assumed that I had not done them. But I had. Every time with every patient.

The medical board’s expert, in fact, found that my records were sufficient and justified my treatment of this very same patient. But the doctor from Florida disagreed. It did not meet his standards, purchased with thousands of government dollars. And this swayed the jury.

In Ruan the Supreme Court said that a doctor must know and believe his actions are criminal or he cannot be prosecuted. But, in their zeal to justify any conviction, the appellate court accepted the government’s argument that I was willfully blind to the opinion of a doctor from Florida I had never met who thought he was brilliant enough to know better than every physician that had seen this patient before him.

I am not terribly humble, but I am not that arrogant.

The pain expert also testified that my patients had addiction, despite no doctor who actually saw the patients, including me who was certified to treat addiction by the very DEA that was prosecuting me, ever making that diagnosis. I had an addiction expert, Dr. Wartenberg, who literally wrote the chapter on avoiding addiction and diversion in the Principles and Practice of Pain Medicine, there to say that these patients did not have addiction. That their symptoms were not created by medications but their underlying medical issues and severe chronic pain.

I myself took the stand and, after a good cry because my defense attorney had failed to bring the slides we needed for the direct examination, spoke like an auctioneer trying to give the jury a synopsis of four years of medical school and a decade and a half of medical practice. Shockingly, I was not able to boil all this down to a few hours on the stand. They did not understand. A doctor has the right to weigh the risks and benefits of treatment and do what they think is best for their patient. There is both a federal law and an Arkansas state law that says a physician cannot be forced to take an action that is against their deeply held beliefs. It is my deeply held belief that when people are suffering they should be treated with effective, compassionate care.

I believed that if I took that particular patient off his medications, the stress would kill him. And indeed, when the state did so against my orders, it did kill him. My dedicated defense counsel, Mr. Ron Chapman, will appeal this to the U.S. Supreme Court, but I have read his filing in Lubetsky’s case. Dr. Lubetsky was also held to an impossible standard of perfection and convicted despite the fact that he had no criminal intent, and the Supreme Court refused to hear his case. I am sure they thought that everything had been straightened out with Ruan. They are wrong.

L. Joseph Parker is a research physician.